Macquarie Leasing Pty Ltd v MALEK

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MACQUARIE LEASING PTY LTD v MALEK [2006] FMCA 769

BANKRUPTCY – Bankruptcy notice – omitted note to paragraph 7 – whether an essential requirement – whether debtor might be misled – whether Federal Court authority should be followed – notice not invalid – sequestration order made.

Bankruptcy Act 1966 (Cth), ss.41(1), 40(1)(g), 41(6A), 41(7), 52, 306
Bankruptcy Regulations 1996 (Cth), reg.4.02
Federal Magistrates Court (Bankruptcy) Rules 2006, r.4.06

Adams v Lambert [2006] HCA 10
Blackshaw Services Pty Ltd v Cureton [2003] FMCA 591
Boylan v Farthing [2000] FCA 575
Foote v Mid-West Finance Pty Ltd (1997) 78 FCR 306
Kirk v Ashdown [1999] FCA 1664
Kleinwort Benson Australia Ltd v Crowl (1988) 165 CLR 71
Minister for Immigration & Multicultural & Indigenous Affairs v SZANS (2005) 141 FCR 586
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Re Ling; Ex parte Ling v Commonwealth (1995) 58 FCR 129, 130 ALR 596
Re Manion; Ex parte Deputy Commissioner of Taxation(1979) 23 ALR 270
Streimer v Tamas (1981) 54 FLR 253
The Australian Steel Company (Operations) Pty Ltd v Lewis (2000) 109 FCR 33

Applicant:

MACQUARIE LEASING PTY LTD

(ACN 002 674 982)

Respondent: SHIRIN MALEK

File Number: SYG2041 of 2005

Judgment of: Smith FM

Hearing date: 2 May 2006

Delivered at: Sydney

Delivered on: 6 June 2006

REPRESENTATION

Counsel for the Applicant: Ms Glover

Solicitors for the Applicant: Douros Lawyers

Counsel for the Respondent: Mr Bowles

Solicitors for the Respondent: Bowles Lawyers

ORDERS

1. The notice of opposition to the petition is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2041 of 2005

MACQUARIE LEASING PTY LTD (ACN 002 674 982)

Applicant

And

SHIRIN MALEK

Respondent

REASONS FOR JUDGMENT

1. This is a creditor’s petition filed on 2 August 2005, which at the request of the parties was referred to me by the Registrar for hearing. The petition relies upon a judgment debt in the amount of $50,846.09 obtained against the respondent in the District Court of NSW on 13 October 2004, arising from the breach of a commercial hire purchase agreement. The respondent has failed to comply with a bankruptcy notice issued on 19 May 2005 in relation to the debt, which was served on her personally on 12 June 2005. Subject to the matter raised by the respondent’s notice of opposition, I am satisfied that she committed the act of bankruptcy alleged in the petition and with the proof of the other matters required by s.52 of the Bankruptcy Act 1966 (Cth) (“the Bankruptcy Act”). 

2. Counsel for the respondent relied upon only the first two grounds in an amended notice of intention to oppose the petition, which was filed on 5 April 2006.  They are: 

   1.The Bankruptcy Notice NN 1487/05 (“the Bankruptcy Notice”) which was served on the debtor omits to include important parts of paragraph 7 as found in Form 1 bankruptcy notice.  As a result the Bankruptcy Notice fails to comply with essential…